Tells the true stories of the hundreds of murder trials that take place every year in Sydney, NSW - most of which go unreported. Not only the facts of the matter, but also attempts to explain the often complex legal shenanigans that can take place during trials and appeals. Dedicated to the victims and their loved ones.

11 February, 2010

Bad Blood

Eanoel Odisho had three daughters: Jaklin, Shokriya and Janet. Jaklin was married to a man named Fouad Eskaria, Shokriya was married to Elia Toma, and Janet to George Hanna. They were all of Assyrian descent, and had lived in Iraq for some time before migrating to Australia. Fouad and George were also related to Mr Odisho by blood, as well as marriage. Elia, however, was not a blood relative, and tended to be treated as a bit of an outsider. George and Janet lived in a top-floor unit in Nelson St, Fairfield, with the rest of the extended family living close by.

On 30 August 1996 a wedding was held, which most of the family attended. After the festivites Elia drove Mr Odisho and some other relatives home. In the car, Elia and his father-in-law Mr Odisho began arguing, and did not stop when they arrived at Mr Odisho's home. Shokriya and their children stayed at her father's house and did not come home with Elia. The next day they went to stay with George and Janet in Nelson St, and did not return home for some time.

Many of the witnesses at trial gave conflicting evidence, and the jury was forced to resolve the inconsistencies as best they could. It appears that on 4 September Elia drove to the Nelson St unit, armed with a knife about 8.5cm long. The Hanna's were at home, along with Shokriya and also Jaklin. Elia blasted his horn, at which his wife and the others came out to the balcony of the unit. Angry words were shouted to and fro, including a threat from Elia to Jaklin that he would "make [her] a widow tonight". Jaklin shouted back that if Elia wanted to fight Faoud, he could be found at a nearby shop. Shokriya agreed to come downstairs, and she and her husband started walking towards the shop. George Hanna decided to drive to the shop to warn Faoud that Elia was on his way.

At the shop there were many Assyrians drinking coffee and playing cards. Elia tried to fight Faoud but both were physically restrained by other people. The shop owner told them to get out, as he didn't want any trouble. Elia agreed to leave and went back to Nelson St with his wife to collect his children, and the Toma's all went home together. Faoud and some other men from the shop went back to the Hanna's unit at Nelson St. Faoud was still enraged at Elia, so he grabbed his club lock out of his car and made his way through the backyards of some adjoining properties until he arrived at Elia's home. Faoud shouted some insults at Elia and challenged him to come out and fight him. Faoud's friends, and Shokriya, tried to talk him out of fighting Elia.

Elia grabbed two steak knives, a rock and a table leg (plus the knife he already had) and met Faoud in the backyard adjacent to his. People again tried to restrain them, but they both broke free. In the course of the fight Faoud hit Elia with the club lock, and Elia threw the rock at Faoud. It missed, and Elia proceeded to use the three knives. Faoud was stabbed twice. One would penetrated his heart, and he died in hospital two days later.

At the trial Elia did not give evidence, but raised self-defence and provocation, and submitted that he did not intend Faoud serious harm, and that it was an accident. These factors would have enabled the jury to return a verdict of manslaughter, or even possibly a not guilty verdict in the case of self-defence or accident. However the murder conviction made it clear they rejected all these factors. The Judge sentenced him to 18 years in prison, with a non-parole period of 13 years and six months.

Elia appealed his conviction on two grounds. First, that the Judge had been incorrect in telling the jury that Faoud's death was not merely an accident, and secondly his Honour had effectively discouraged the jury from finding that there was provocation. The defence at trial claimed that Elia had not intended to kill or seriously harm Faoud, and that the fatal wound had been inflicted by Faoud moving forward onto Elia's knife, or that a third person trying to break up the fight had accidentally caused Faoud to fall onto the knife. However, the Crown case was that Elia had deliberately thrust the knife into Faoud, as opposed to merely holding it near him, say, in a threatening manner. The Judge's direction to the jury was that if they were satisfied Elia intended to seriously harm or kill Faoud, then the result could not be considered accidental. The Appeal Court found no problem with this comment.

In terms of provocation, the Judge made the following comment to the jury: "Most of you have probably lost your temper at some stage, but nowhere near the extent that you were inspired to kill or inflict grievous bodily harm on the person who is the source of your irritation." The Appeal Court thought that this was reasonable to explain the level of provocation required to reduce the charge to manslaughter.

Finally Elia appealed the harshness of his sentence, saying that the Judge was wrong to reject the report of a Counsellor who said he was "full or remorse for his actions". The Judge found no evidence of remorse in any statements Elias made to Police, the Counsellor or any other people, and that the comment was merely the opinion of that Counsellor. His Honour was entitled to form his own opinion on the evidence, and the Appeal Court agreed.